Tuesday, June 15, 2010

(2)How to file a demurrer to evidenceThere are two ways of asking for the leave of court to file a demurer to evidence: oral or written.

A. After the public or private prosecutor has formally offered the evidence in court, the defense lawyer can immediately ask the court for its express leave to file the demurrer. In granting the leave, the court also states a time period within which the demurrer must be filed, copy furnished to the prosecutor.

The prosecutor asks for the same period of time within which to file an opposition. The next hearing is scheduled giving allowance for the filing of the demurrer, the opposition, and the court’s action on the matter (whether to grant or deny the demurrer).

B. The defense counsel can also file a motion asking for the express leave of court to file the demurrer. The demurrer itself is attached to the motion.

(3) When the fiscal is absent or has to leave the hearing

The fiscal or public prosecutor has the control and supervision of the prosecution. In the fiscal’s absence, hearings must be reset even if the private complainant has his own lawyer. If the fiscal has to leave the hearing for some reason, he must endorse or authorize the private prosecutor.

(4) Remedy when the doctor who signed the medico-legal certificate is no longer available to testify

Doctors who work in government hospitals may be transferred to other institutions or may have already left the country. If the government doctor who signed the medico-legal certificate is no longer available to testify, the prosecutor can ask the court to issue a subpoena duces tecum and ad testificandum for the hospital’s records custodian. The records custodian will be directed to bring to court a certified true copy of the medico-legal certificate and to testify on the authenticity of such record.

A related issue: Can doctors in private hospitals issue a medical certificate? Yes they can. But if a patient tells a private doctor that the certificate is needed for the filing of a criminal case, the doctor will usually refuse to issue a certificate. The doctor will tell the patient to have himself or herself re-examined by a government doctor. The reason is that usually the private doctor does not want to be bothered in going to court and testifying.

2. Motion for postponement - due to the absence of a party or counsel because of illness, or a conflict in schedules of the counsel de parte or the private prosecutor; absence of a material witness, etc.

4. Exclusion of other witnesses - to prevent other witnesses from hearing the testimony of the witness currently being examined.

5. Exclusion of the public - the court may by itself exclude the public if the evidence to be presented is offensive to decency or public morals.

6. Provisional remedies - may be availed of in the civil action deemed instituted with the criminal action insofar as they are applicable, e.g. attachment of the property of the accused (Rule 127, Section 1 and 2).

7. Demurrer to evidence - may be filed by the defense after the prosecution rests its case, based on the insufficiency of evidence. If the motion is granted, the accused is in effect acquitted. If the court denies the motion, the accused may present his evidence. When it is filed without express leave of court, the accused waives the right to present evidence and submits the case for judgment on the basis of the prosecution’s evidence. (Rule 119, Sec. 23)

8. Dismissal of the case

(a) If the private complainant executes an affidavit of desistance, the fiscal files a motion to dismiss the case. The judge grants it if the case cannot be prosecuted successfully without the participation of the complainant.

(b) If the complainant has been absent several times despite due notice, the accused may move for provisional dismissal based on failure to prosecute, or dismissal on the merits by invoking his Constitutional right to a speedy trial.

(c) The accused can file a petition for mandamus to compel dismissal of the information, or a petition for habeas corpus, in case postponements lead to his detention beyond a reasonable period of time.

9. Motion to discharge the accused to become a State witness - the court may direct one or more of the accused to be discharged with their consent, provided that

(a) there is absolute necessity for the testimony of the accused whose discharge is requested;

(b) there is no other direct evidence available for the proper prosecution of the offense, except such testimony;

(c) the testimony can be substantially corroborated in its material points;

(d) said accused does not appear to be the most guilty; and

(e) said accused has not been convicted of any offense involving moral turpitude.

The discharge shall amount to an acquittal and shall be a bar to his future prosecution for the same offense. (Rule 119, Section 17 and 18)

The discharge of an accused under Republic Act No. 6981 as availed of by the prosecution in favor of the private respondents, is distinct and separate from the discharge of an accused under Section 17, Rule 119 of the Revised Rules on Criminal Procedure.

The discharge of an accused to be a state witness under Republic Act No. 6981 is only one of the modes for a participant in the commission of a crime to be a state witness. Rule 119, Section 17, of the Revised Rules on Criminal Procedure, is another mode of discharge. The immunity provided under Republic Act No. 6981 is granted by the DOJ while the other is granted by the court.

Rule 119, Section 17, of the Revised Rules on Criminal Procedure, contemplates a situation where the information has been filed and the accused had been arraigned and the case is undergoing trial. The discharge of an accused under this rule may be ordered upon motion of the prosecution before resting its case, that is, at any stage of the proceedings, from the filing of the information to the time the defense starts to offer any evidence.

On the other hand, in the discharge of an accused under Republic Act No. 6981, only compliance with the requirement of Section 14, Rule 110 of the Revised Rules of Criminal Procedure11 is required but not the requirement of Rule 119, Section 17.

More to the point is the recent case of Soberano v. People where this Court held:

An amendment of the information made before plea which excludes some or one of the accused must be made only upon motion by the prosecutor, with notice to the offended party and with leave of court in compliance with Section 14, Rule 110. Section 14, Rule 110 does not qualify the grounds for the exclusion of the accused. Thus, said provision applies in equal force when the exclusion is sought on the usual ground of lack of probable cause, or when it is for utilization of the accused as state witness, as in this case, or on some other ground.

At this level, the procedural requirements of Section 17, Rule 119 on the need for the prosecution to present evidence and the sworn statement of each state witness at a hearing in support of the discharge do not yet come into play. This is because, as correctly pointed out by the Court of Appeals, the determination of who should be criminally charged in court is essentially an executive function, not a judicial one.

According to petitioner, the testimony of an accused sought to be discharged to become a state witness must be substantially corroborated, not by a co-accused likewise sought to be discharged, but by other prosecution witnesses who are not the accused in the same criminal case. Petitioner justifies this theory on the general principles of justice and sound logic. He contends that it is a notorious fact in human nature that a culprit, confessing a crime, is likely to put the blame on others, if by doing so, he will be freed from any criminal responsibility. Thus, in the instant case, petitioner supposes that both Abutin and Tampelix will naturally seize the opportunity to be absolved of any liability by putting the blame on one of their co-accused. Petitioner argues that prosecution witnesses Parane and Salazar, who are not accused, do not have personal knowledge of the circumstances surrounding the alleged conspiracy. Thus, they could not testify to corroborate the statement of Abutin and Tampelix that petitioner is the mastermind or the principal by induction.

We agree with the Court of Appeals in dismissing this reasoning as specious. To require the two witnesses Parane and Salazar to corroborate the testimony of Abutin and Tampelix on the exact same points is to render nugatory the other requisite that “there must be no other direct evidence available for the proper prosecution of the offense committed, except the testimony of the state witness.” The corroborative evidence required by the Rules does not have to consist of the very same evidence as will be testified on by the proposed state witnesses. We have ruled that “a conspiracy is more readily proved by the acts of a fellow criminal than by any other method. If it is shown that the statements of the conspirator are corroborated by other evidence, then we have convincing proof of veracity. Even if the confirmatory testimony only applies to some particulars, we can properly infer that the witness has told the truth in other respects.” It is enough that the testimony of a co-conspirator is corroborated by some other witness or evidence. In the case at bar, we are satisfied from a reading of the records that the testimonies of Abutin and Tampelix are corroborated on important points by each other’s testimonies and the circumstances disclosed through the testimonies of the other prosecution witnesses, and “to such extent that their trustworthiness becomes manifest.”

As part of the conspiracy, Abutin and Tampelix can testify on the criminal plan of the conspirators. Where a crime is contrived in secret, the discharge of one of the conspirators is essential because only they have knowledge of the crime. The other prosecution witnesses are not eyewitnesses to the crime, as, in fact, there is none. No one except the conspirators knew and witnessed the murder. The testimonies of the accused and proposed state witnesses Abutin and Tampelix can directly link petitioner to the commission of the crime.

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I took these pictures when I was a journalism teacher and yearbook adviser in Rizal High School in Pasig City, Metro Manila, Philippines from 1984 to 1995. Rizal High School was once credited in the Guinness Book of World Records as the world’s largest high school. Hello to all Rizalians!

Getting married? Take a look at what “covenant marriage” is all about

“Marriage is a covenant between a man and a woman who agree to live together as husband and wife for as long as they both live. We have chosen each other carefully and have received premarital counseling on the nature, purposes and responsibilities of marriage. We understand that a covenant marriage is for life.”